41 posts from July 2012

07/31/2012

Jack M. Balkin (Yale Law School) and Sanford Levinson (University of Texas Law School) have posted The Dangerous Thirteenth Amendment (Columbia Law Review, forthcoming) on SSRN. Here is the abstract:

Through most of its history, the Thirteenth Amendment has been interpreted extremely narrowly, especially when we compare it to the Fourteenth Amendment and the Bill of Rights. Modern lawyers would never read the Fourteenth Amendment in the way that they read the Thirteenth — as limited to close analogies to specific historical practices. The Thirteenth Amendment has been read in this way because it is “dangerous.” The demand that “neither slavery nor involuntary servitude . . . shall exist within the United States,” taken seriously, potentially calls into question too many different aspects of public and private power, ranging from political governance to market practices to the family itself.

Our contemporary association of “slavery” with a very limited set of historical practices is anachronistic and the result of a long historical process. The language of the Thirteenth Amendment is taken from the 1787 Northwest Ordinance. Yet at the time of the founding the concept of “slavery” was far broader than we currently understand it. ”Slavery” meant illegitimate domination, political subordination, and the absence of republican government; “chattel slavery” was only the most extreme and visible example of slavery. For example, American colonists repeatedly argued that the British Empire had made them slaves because they lacked political freedoms and representation in Parliament.

The broader, anti-republican concept of slavery was narrowed during the fight for the abolition of chattel slavery for political and strategic reasons. Abolitionists wanted to avoid awkward comparisons to the economic and political subordination of wage laborers and women. Once chattel slavery was abolished, labor activists and suffragists sought to revive the older, broader concept of “slavery.” But emancipation allowed defenders of the status quo to insist that American society was now “free.” Everyday aspects of economic and family life could not be “slavery,” which was by definition the worst of evils and had already been eradicated by law. Even today, calling an injustice “slavery” is generally seen as overheated hyperbole and even a presumptuous insult to the memory of the victims of African American chattel slavery. This essay concludes by asking how our political imagination has been limited as a result of this history.

In District of Columbia v. Heller, a sharply divided United States Supreme Court held that the Second Amendment to the United States Constitution protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Justice Scalia, writing for the majority, made clear that the Court’s recognition of this right, which it found inconsistent with the District of Columbia’s restriction on the possession of handguns in the home, did not mean that persons have “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” The Court chose not to delineate “the full scope of the Second Amendment,” and also “declin[ed] to establish a level of scrutiny for evaluating Second Amendment restrictions.” The majority opinion in Heller is significant both for the constitutional right it established and for the questions of scope and operation associated with that right that it left unresolved. Justice Scalia’s choice to write this “narrow” opinion has “unleashed a flood of litigation” in the lower courts, as litigants and judges have confronted the uncertainty purposely left by the Supreme Court majority. Woollard v. Sheridan, a test case brought in the United States District Court for the District of Maryland by Raymond Woollard and the Second Amendment Foundation, is one of many such cases to be presented in recent months. While Justice Scalia’s Heller decision relies on familiar conservative interpretive methods, including a hard-edged textual analysis and a heavy dose of originalism, in order to find a “core” right of individual citizens to possess guns in their homes for self defense, his further choice to avoid resolving significant questions of scope and operation reflects a different form of conservative constitutional jurisprudence, which professor Cass Sunstein has termed “Burkean minimalism.” To the extent that the Supreme Court embraced Burkean minimalism in Heller, the tradition of balanced handgun regulation in the states generally, and the more particular regulatory practice in Maryland, ought to count significantly in both the determination of the scope of the right and in its operation. The exercise of judicial review under these circumstances should be characterized by a deferential stance toward the sensitive public policy judgments reached decades ago and maintained over the years by officials in the legislative and executive branches of state government. Many lower courts confronting these issues have explicitly or implicitly recognized the essentially conservative nature of this developing jurisprudence, its Burkean incrementalism. The District Court in Woollard chose a more aggressive path, and in that respect misread the important cautionary signals that the Supreme Court majority has provided.

07/27/2012

The main purpose of this essay is to show that the views about linguistic communication that make Textualism a plausible theory of what the law says, show why textualism is not nearly as helpful a theory of statutory interpretation as its proponents claim. The essay begins with a brief outline of what Textualism is, in light of its critique of Intentionalism and Purposivism; it then proceeds to explain the view of language, particularly asserted linguistic content, that is required to make sense of Textualism, and defends this view against a neo-Gricean critique; finally, the paper strives to show why those same ideas about determinants of communicated content help us to see that Textualism has very little to offer by way of a general theory of statutory interpretation.

which [Professor Shaman says] saw the Court reaching the right result but for the wrong reasons. In Carrigan, the Court held that the First Amendment was not violated by a state ethics rule prohibiting public officials from voting on legislative matters with respect to which they have a conflict of interest. Justice Scalia’s opinion asserted that the ethics rule was constitutional because it had an historical pedigree; similar legislative recusal rules have existed since 1791 when the First Amendment was ratified and have been in place ever since. Although this may be correct, in several other respects Justice Scalia misread the history of the First Amendment, apparently to suit his own purposes. Moreover, his reliance on the original understanding of the First Amendment as the controlling source of its meaning is an aberration from long-standing First Amendment jurisprudence.

Flawed constitutional precedents give rise to a jurisprudential dilemma. On the one hand, there is the value of allowing the law to remain settled. On the other hand, there is the value of getting the law right. The tension is well-chronicled. But while constitutional settlement has received extensive scholarly and judicial attention, the appraisal of constitutional rightness remains remarkably undeveloped.

This Article seeks to enrich the prevailing conception of stare decisis by bridging the divide between constitutional precedent and constitutional methodology. The Article demonstrates that although certain consequences of deviating from precedent can be analyzed in isolation, the ultimate choice between overruling and retaining a flawed opinion requires the integration of a broader interpretive philosophy. Only then can a court determine whether a precedent is so problematic as to justify its overruling despite the countervailing costs of legal change. Whether one’s preferred interpretive approach is originalism, living constitutionalism, or otherwise, the value of getting the law right is derivative of methodological commitments and the normative premises that inform them.

Recognizing this interdependence carries significant implications for the evolution of contemporary constitutional theory by situating the treatment of precedent within the framework of interpretive method. It also reconceptualizes the role of precedent in constitutional adjudication by highlighting the fundamental dissonance that pervades the relationship between stare decisis and pluralistic approaches to interpretation.